Intellectual Property Law Term Paper

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One of the most familiar areas of patented material going off-patent is when prescription drug medication goes off-patent and generic versions of the drug can be manufactured by different companies. The prescription drug example gives a good explanation of the reasons behind patent law. The developer retains the exclusive right to produce the medicine for a sufficient time period to encourage research and innovation, but the product does become available at a lower cost to consumers within a relatively short period of time.

Patents do not automatically come with invention, with separates the concept of the patent from the concept of the copyright. On the contrary, inventors much apply for a patent. This is due to the requirement that patents require an actual innovation. Furthermore, some things cannot be patented. "In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods or methods of medical treatment (as opposed to medical products) are not generally patentable" (WIPO, Unk.). A person applying for an application must describe the invention clearly and in sufficient detail that someone in the field could reproduce or use the invention (WIPO, Unk.). The application may contain visual material to support the claim. Furthermore, patent claims can be contested by third parties who are either claiming ownership of the innovation or challenging whether it is the type of innovation that can actually be protected by patent.

One of the difficulties in property law is that there has been a shift in the legal climate surrounding patent law. Traditionally, judges were somewhat reluctant to challenge patent decisions because they did not have the scientific basis to judge the merit of some of the claims in the patents. However, recently the Supreme Court has taken more of an activist approach in the area of patent law. The Court has narrowed patent protection and has looked at more a more holistic approach, rejecting its former formalistic approach (Lee, 2010). The natural consequence of this is that judges will be interpreting technology to determine patent rights, which will require a level of judicial interaction with patent rights that may be detrimental to creators depending on the level of skill and knowledge of judges. Furthermore, the ability to transmit patent rights to purchasers or other secondary parties presents a challenge because there is a category of purchasers that provide no meaningful additions to patents, simply purchasing them and then selling them for a profit. There is some suggestion that the law may be evolving to differentiate those type of secondary purchaser from secondary purchasers that increase innovation, which might results in differential treatment of different purchasers in patent law. This makes intellectual property an interesting part of the law, because deciphering those cases involves a real knowledge of the underlying subject matter and not just the applicable laws.

Other Types of Intellectual Property

There are several other types of intellectual property, which are not as widespread or well-known as copyrights, patents, and trademarks. These include: industrial design and geographical indication. Industrial design refers to the aesthetic aspects of an item, whether two or three dimensional. Industrial design can apply to a wide variety of products, but to get protection as an industrial design, the design has to be new and it cannot be a functional aspect of the machine, which would qualify for patent protection, instead. Geographical indication is a sign on a product indicating that a product comes from a particular geographic region. These indicators are familiar on agricultural products, but may also be used to indicate a certain type of craftsmanship associated with a particular geographical region. While this may seem like a new type of intellectual property, it has long been used on wine to indicate grapes grown in a particular region. It is becoming increasingly popular and has a great monetary value in the coffee market (Teuber, 2010). What is interesting is that this economic value seems to be related to the willingness to accept this geographical indication as a type of intellectual property; if it does not add any value or distinction to the product, it seems unlikely that it would be considered a form of protected intellectual property.

Conclusion

There are some arguments that vigorous protection of intellectual property interests dampens innovation because, in today's high-tech world, so much innovation is dependent upon existing technology. There are even movements, such as those advocating open-sourcing, that promote the creation of intellectual property without retaining an ownership interest. That some creators may choose this approach seems, at first glance, like an argument against protecting intellectual property interests. However, it is actually an argument in favor of intellectual property interests. Just like real property laws allow one to open up private land for public use, intellectual property laws allow one to create intellectual property intended for public use.

The reality is that protecting intellectual property rights acknowledges that profit is a significant motivator for creation and protects the rights of people to profit from their creations. This provides benefits, both tangible and intangible, not simply for the creators of this intellectual property, but also for the consumers. For example, the amazing technological advances in the last half-century would have been unlikely in an atmosphere that did not protect the innovator's rights to profit from their inventions. Moreover, if they could not sell those rights, exclusively, to a manufacturer or developer, then it is unlikely that those companies would have been willing to invest the type of money that has been necessary to bring these ideas into mainstream use. Anyone that uses a smartphone, a laptop, a personal GPS, or any other modern-day small electronic devise, is benefitting from the protection of intellectual property rights. Moreover, a tremendous amount of modern entertainment would not exist without copyright protection. If one considers that many of today's popular movies literally costs hundreds of millions of dollars to produce, it seems highly unlikely that they would be produced if there was no copyright protection in existence. Finally, it would be difficult, as a consumer, to know whether products being purchased were genuine or fakes if companies could not get copyright, patent, and trademark protections, which might mean that consumers would be at much greater risk of paying full-price for inferior knock-off goods and services.

Teuber, R. (2010). Geographical indications of origin as a tool of product differentiation: the case of coffee. Journal of International Food & Agribusiness Marketing, 22(3-4), 277-298.

World Intellectual Property Organization. (Unk). What is intellectual property? Retrieved

September 19, 2014 from WIPO website:…
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